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tv   Chief John Justice Roberts Addresses Fourth Circuit Judicial Conference  CSPAN  July 4, 2016 9:57pm-10:51pm EDT

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suspected of something. we think there is an exchange of information through gmail. please give us access. schmidt: america has the fisa court. that is a legal proceeding. all this terrorism is a horrific thing. the democracies have legal proceedings to deal with it. the fbi director without cause. he would go to the three-judge panel and they would give the information just like that. less than 50,000 times per year for access and we have billions of users. so it is a relatively rare event and that is for all national security matters. charlie rose: 10 years from now the world will be dramatically different because of what we do.
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schmidt: thing about the information you have now you didn't have a decade ago. the companies that we talked about today that didn't exist. and watchyear-old this 10-year-old manipulate his or her ipad or iphone. you will see the future. it is a good future. evidence is that people are getting smarter not dumber. educational achievement is getting stronger. a lot of that is connected to the interconnectedness of all of us. charlie rose: why is your 13-year-old working on that? because my 10-year-old is away. thank you very much. [applause]
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>> the house returns from the july 4 break tomorrow to work on gun legislation. house democrats may disrupt proceedings over the gun debate as early as tomorrow. the senate returns for legislative business on wednesday. with a vote on a judicial nomination. live senate coverage on c-span two. the rules committee meets tomorrow to committee consider a counterterrorism bill. that measure would allow the attorney general to delay gun sales to people that are on the terror watch list. we will have live coverage of that on c-span two.
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>> if we're going to invest an additional $100 million into higher education we've got to change the way we deliver education. and expect more for the dollars that we are getting. a body of literature that is clear that there are certain courses you should take, map, science, english that should be in place if you expect to be successful in college. simply to accept students who have not told that curriculum and to let them into that school is great to service -- the service to them. and the effort for reduction which i happen to support. a atnday night on q and eastern -- 8:00 eastern. >> court john roberts addresses for judges at the circuit court of appeals. he talks about try to get a consensus. this is about 15 minutes.
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>> ladies and gentlemen, this is the highlight of the conference. judge wilkerson who will carry on a conversation with chief justice roberts. >> there is no need to panic. i will not give a speech. i did what to thank you all for inviting me to the conference again. it is an invitation i'm always happy to accept. it is also an opportunity to thank judge traxler for his service, the only as chief judge but also for the past three years as the chairman of the executive committee.
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it is the most important appointment i have to make it. once again, i have chosen very well. job.has done an external the responsibility of the chairman of the executive midi to work in setting national policy for the court. roles and operations and the inevitable crises that come around. there are two goals that have to be met. all of those questions have to be answered and handled with wisdom and good judgment. chairman has, the to make it look as if i have something to do with it. in grateful for his success both regards. today is a very important anniversary. , may 25, 1787, the opening of the constitutional convention. it was a big day for the fourth
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circuit. george washington was elected president of the convention and his nomination was seconded by john rutledge of south carolina. second nominations is a good thing to do. washington included that lynch of the six as one employees to the supreme court. he had a chip on his shoulder. he thought he should have been the chief justice. 1791 withoutn having heard a single case. to accept the far more prestigious position of chief justice of south carolina. left to accept the far more prestigious position of the governor of new york, president washington appointed rutledge to be the second chief justice. he was not his first choice. alexander camelton was his first
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choice and washington offered him the job but hamilton declined. think if things had been different. the most successful play on broadway could be a hip-hop musical about a chief justice. which would have been a little different. [laughter] we will not conduct this interview and wrap and i think and il get -- in rap think we will get started right now. [applause] >> thank you so much for coming to the gathering. it is great to have you here. waytwo of us go back a long and we were together in the justice department during the reagan administration. that tell you that at point that you judgment was
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respected by the justice department and the white house and that respect has only grown over the course of the years. i know the chief justice is greatly respected and the public at large and i think this conference is the perfect way to emphasize just how much of -- how much those of us cherish and respect the quality of his leadership. we appreciate the dignity and character and wonderful sense of humor with which the chief justice presides. >> that is probably a good place to end. [laughter] it will be downhill after that. >> one more thing. all, a what binds us
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deep love of law and nobody loves the law, i have never met anyone that loves the law more than this chief justice of the united states. he appreciates the potential that law has to preserve our liberties and maintain order and to make more satisfying lives for the majority, for all of americans. values,nly shares our he embodies them. we really like that. and welcome to you. it is great to see. us more themany of death of justice scalia and he had a great many friends and admirers in the fourth circuit and i was particularly pleased
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to see all of his colleagues on your court from across the respects,o pay their not just the jurisprudence but the warm and magnanimous feeling he exhibited and we are particularly proud to have his son as a member of our fourth circuit. we did not get a chance, really to celebrate, he were talking about the anniversary. we did not have a chance to celebrate their 10th anniversary becoming chief justice. , decade islook back the time to reflect, what would you say has been the most satisfying a competent for you
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in the course of your 10 years, 11 years now. what is the thing you look back on the most satisfaction? >> i would say serving for 10 years. it may sound facetious, but the first thing i would like to point out is that it is very difficult for any member of the court, sternly for a chief justice to single out any particular a competent as his own. we are very much a collegial body, and the technical sense. but the sense that we get along each other, but we do. the opera as a group. i think it would be better to ask what the competence of the court over the past 10 years have been. i think the answer is quite simple. we as a group have done our job of protecting the role of the inrt as a coequal branch
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carrying out the separation of powers and living up to the challenge that is carved in marble on the courthouse. equal justice under law. courtare points where the maybe hasn't been as good as that. they might have been. typically those are occasions where dissented. [laughter] but we don't set out to a college great things. -- accomplish great things. responsibly of the other political branches. pleasedback, i feel that i think we have done that. your nearing the end of a term. historically, most of the really big cases have come down towards
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the end of june and i get people asking, at the end of june, everybody wants to reset the last day of june. before independence day. school bell rings and people are rushing out the door, does the adjournment date, does it affect the quality of june opinions? is there a rush to get things leads toin some way less scrutiny of those last opinions coming out the door? >> i think that might have been true generation ago. 1980, was a law clerk in the court issued 150 opinions in that term. today we issue about half of that.
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there is a lot of debate about the reasons for that and some of the reasons are interesting to talk about. when you have 150 opinions try to get out, i think maybe the answer is yes. the lawyers working on briefs or other analyses, i look at the date of the opinion carefully for that era and if it is june 20, maybe want to read that with a little more skepticism. what have the number at 75, i don't think that is true. hard ones naturally take longer or at least we know we have roughly the end of june so we focus on some of the easier ones before that. i don't think they sucker -- suffer in quality. we don't have a fast deadline. we don't leave until all the work is done. sometimes that pushes us into july and sometimes we have even gotten out a day or two early. part of my job is to make sure
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we get done. it is hard if everybody worked on their own schedule with different priorities, nothing would come together until the last day. we have to sit down and say, firstfocus on these cases and get it all done. if you're writing separately, move it along. if we are their past the fourth of july, that is probably my fault. past thattioned the the docket has gone down from 150 275. 75.o none of the complaints come from the court of appeal judges. we get reversed less often. >> you are doing well so far. i think we have issued for opinions of the fourth sick it -- circuit and you have been affirmed in three of them. i have to admit, i dissented in one of those three.
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keep up the good work. >> speaking of opinions and ierything, every so often have occasion to look through the opinions of the 1930's and amazed at0's and i am how short some of them are and how few footnotes some of them have. and you go back and look at an opinion like brown the board of or the case that provided the right to counsel s and theyal were written with short opinions. the modern trend has been toward longer and longer opinions with more and more footnotes in the 30's, 20's, 40's and 50's.
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it isawyers most bible as her time -- most bible asset is asset isst valuable his or her time, are we imposing an undue burden on the time of a professional with a length of our opinions and simply what we require lawyers and district court judges and professors and others to read? is that a problem? >> yes and no. some of the examples you gave have particular reasons. about 10 pages. that was a conscious decision by earl warren. he wanted to have a unanimous opinion and whether things that if he had taken one more page or two more pages than the
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agreement would have started to unravel. and i think he wanted it to be short enough so everybody could read it. not just the legal profession. the commentators and reporters would not really have the opportunity if this was 35 pages. it would be right there and you can look at the new york times i think it is all there. he had reasons for keeping it short. i agree with you on like the opinions and footnotes. a big are the fewest number of footnotes out of any of the justices in my opinions because, when you get bitty -- busy you don't read them. i do think it is a problem. years someost 100 more logical it. the statutory production is not what it is today. dodddo not have. frank --
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frank. it takes a few more pages to find a way out of the forest those cases. technology is part of it. it is too easy to write things and change them and here are four paragraphs and move them over to the opinion. the older days, it was harder to make revisions. one reason it has been suggested on my we cap your cases is because fewer conflicts of the lowercase -- court. everyone knows what everyone else is doing. even in 1980, you could go along the lower courts and say this and not know of the supreme court of fairmont had gone out the other way. maybe that is the reason there are fewer cases. >> it is remarkable how changes are occurring on every front.
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the number of tertiary grants, the size of opinions. and other big area of things has been the nature of the supreme court appellate bar. i remember justice powell used to complain that there were all too many people coming up and are doing supreme court cases were wayome of them over their head. now the complaint is we have all too few. bar, particularly in the private, civil cases, there players and repeat it is sort of a, let's give somebody else a chance. bar before thee supreme court becoming to elite and ingrown in your judgment? before the talk
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supreme court historical society on just that subject 12 years ago. some of you may have missed it. [laughter] aboutt time, it talked that very trend. 1980, putting aside the government lawyers, i think there were two or three people who argued more than one case. now, it is pretty much routine. the lawyers we seek quite often in a single case. what has done 10 arguments, what has done 30 arguments. done 10 arguments, one has done 30 articles. the bar is more specialized now. many ways, it is a good thing. arguing before the supreme court is specialized. it's just not like arguing
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before the court of appeals. it is good to have people there who know that and have done it before. and understand what we are looking for when he asked 100 questions and a half hour. it has happened. understand that although the case involves a bankruptcy statute, it is probably not in the supreme court with bankruptcy issues. it is good that those people know that it is good that there are repeat players, just as many other courts. they know they will be up there later. they're going to be a little more circumspect about how to analyze the record and expand the cases to you. having said all that, i know i do in many of my colleagues, i think missed the opportunity for something of a mr. smith comes to washington moment where he the sole practitioner with the battered briefcase and you get a
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good sense of what his practice is like in his understanding of what the court is like and they often do a very good job but it is just so hard these days. you have to spend months focused on the supreme court case and it is hard for it so practitioner to do that. sole practitioner to do that. you'd lose a little bit of the color and texture of the an argument when it is the same people. but we benefit a great deal by having experts in front of us. >> less and less a place for amateurs. they don't even know our names and they would be calling one justice another name. at least with the repeat players, they will get the names right. >> you would have thought so. but in our last case, and mistake happened and justice inspired was referred to as
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justice o'connor by a repeat player. sometimes people ask what advice i have for advocates and i always say, that use the names -- don't use their names. [laughter] >> i have a hard time picking up in court where there is not change. involvese big areas law clerks. to be, the numbers of clerks has increased. people keep reminding me that marburyshall wrote versus madison without law clerks. how did he do it? going from zero clerks to four addition, it used to be that the clerks would go right from law school to the supreme court and then an clerks it was a
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good requisite and now we have a situation where larger number of law clerks are hired after a practicewo or more of or government service. you have it flipped around. we used to be training in the judicial range. law clerk for private practice and now seems like private practice our training law clerks -- lawyers to serve as law clerks. is this a good trend? i think part of the value of a clerkship was partly sentimental value. youre felt this way about clerkship with judge friendly. this was our first formative professional experience and so we held it in particular
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theimentally throughout rest of our professional lives. it was not just another stop. right about the trend and is it a good idea? >> you mention john marshall not having any clerks and it ties into your earlier question, i suspect one reason of opinions or longer is because there are more clerks. you feel it would be a waste if you don't put this in somewhere. that might be part of the problem. maybe things would be better if we had only two clicks. or fewer. but there is a trend of giving, hiring people with upset experience before coming to the court. i know i have done some of that. most of my clerks are hired out of an appellate court should.
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i think the jury is out. i think there are disadvantages to having somebody who is been in practice it while. try to figure out that, in a sense it is because they make it to be too good at law. we want people who are there who find ank hard, who will issue and find a case on this and do that. but we don't want them to necessarily prepare things that are too polished whether it is because as wes proudly say, we're the only branch of government where we still do our own work and if you get somebody who is too good at producing what you want them to produce, it kind of makes it harder for you to find a way into the writing sometime. >> he used to complain, justice
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powell, we were way too green when he first came on the court because he was a managing partner of a major law firm and had people with years of experience but then as the years went on, he said, it is a distinct advantage to have our clerks who are green ha because they bring the experience from their generation and the latest bank from law school. he went on a complete and 80 on that. 80 on that. i want to ask a question in a whenlighthearted vein chief justice rehnquist came to the court, he would use to of the the cultures different circuits of appeals. used to talk about the four
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circuits, black try tradition. he would contrast that with what he called the sandals and t-shirts tradition of the ninth circuit. judicialerent conferences and i get in light of this contrast, do you think the fourth circuit is to lighten up? >> i think the other circuits .hould tighten up a little bit one of the things about my job is i get to go to the other circuits. do one other around the country. you get a bit of a flavor. it is good for the organizers. they have a dress code. formal attire, evening banquet,
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business attire. nightntioned the nice -- -- ninth circuit with no shoes or service. the last time is there, the conference was on the beach in .alibu when i was arguing cases around the country, i always enjoyed it. themselves about everybody it's an oral argument. which means, often five minutes. you get a real sense of new york. the culture is a little more genteel. to have that sense approach. i was just out at the eighth circuit a month ago and it is a
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mix. north dakota, arkansas. mixture ofer of -- cultures. you get a good sense of that. and it is a good thing that reflects the diversity of our profession and country. that is a positive thing. that secondoned circuit with a five minutes of oral arguments. the red light really isn't red. argued for the red light will he meant stop talking. ours traditional in conversations, your summer reading list. give us, and that you will have some downtime. what will you read? >> i will give a little shout
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out to my colleagues, i'm sure justice breyer's new book, the court and the world is worth buying. i always read my colleagues books. >> do you agree with justice breyer's book? we should use international law all over the place? >> i have not read it. [laughter] to be honest, i think a phony debate. in the things we ought to look at foreign law. it has something bible to teach us. nobody -- valuable to teach us. nobody disagrees with that. the issue comes up when you are looking at foreign law to inform the constitution. iewed theourts have v death penalty as inconsistent. does that show you how you
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should interpret the amendment? what i understand to be his basic thesis which is that the world is a more interconnected place and we need to keep that in mind and understand a little more about how our legal interpretations fit with the greater body of law. the challenge is that you can't just say the worldview of law because that is different. english, then the , their supreme court legal system is a little iranerent than the law in or iraq. >> i was but it would be hard for lawyers to prepare a case if they not only responsible for domestic and estate and federal .aw, and also for law it seems there is some danger running up the meter in legal bills if lawyers have to prepare for the fact that this case in
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this country may play a role in the supreme court or court of appeals opinion. may increaseit the challenge of an attorney's job in preparation. >> i guess it does. they have always had a challenging job translating what is going on for the justices and for the judges. i don't think we live in an ivory tower. some of it is quite a challenge. you see it a lot these days, technology. more and more we have cases that , fourthantitrust area amendment area, first amendment area, what to do with the new technology? it partly generational. we are not all as adept with the technology.
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we have had cases where it has been a real responsibly and lawyers had challenges explain how this works. just another challenge. last time i looked, they make more money than we do. [laughter] >> little time here for questions from the audience. note, we should not question the chief justice on recent cases or political questions or questions bearing confirmation controversies. plenty of other interesting things to talk about without wading to the- subject. anyone that would like to ask a question, feel free to? [indiscernible]
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>> enough you can hear in the back, the question is we talked often about the need for diversity and the benefits of diversity on the courts and the question is, do i find it problematic that all the schools went to to law -- two losses and there are no protestants. with respect to the first, yes. i do think it is unfortunate. different presidents of different parties pick who they think is most qualified. surprising that the members of the court all n as him a very
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unrepresentative sample. does that mean we bring different views of how to look at the law if you went to a big state law school as opposed to harvard or yale? i don't think so. will have to say you a different view, but on the other hand, it is a big country there are a lot of law schools so you think there would be diversity. think, articulate why i where that is reflected or what. parts of the country is another thing. ien justice stevens and served on the court, we felt it little bit of a special bond and that we were the only ones from the middle of the country. everyone else was from the east coast or west coast. again, it is hard to articulate. they just talking about the circuits. all of us know, if put into a
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room with people from new york and california and the south, we get a sense that you could tell a bit. i can tell you are from. general way of dealing with people. it is hard to figure out, does that mean, if you have an eastern seaboard bias, what does that mean? i can't say. goes, is the religion have nothing any evidence of that having made an impact. it is unusual if you're picking nine people that that would be the religious makeup. a short answer to your question, it is kind of strange. but i can't put a finger on how the difference shows up. >> yes sir.
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unanimoustioned the nature of the brown the board of education decision. yourould you describe approach to consensusbuilding on the court and how would you of someit to the styles of your favorite chief justice is in our history? >> it is interesting. it was a great benefit that brown with the unanimous decision. unanimous in many respects. you had a generation of litigation try to figure out what does this mean. how does it work out. obligation apply and on what basis? it was unanimous and the good thing. it is subject to criticism.
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even if it is going to be 7-2. let's get some of those things resolved. there are pluses and minuses. sometimes when we written things, people have said, practically from the lower courts, they often pay the price, how do we do this? could the dissent have been five more pages to give us more guidance. i try to conceive as much consensus as i can. that is not something i can do on my own. we kind of have to have commitment as a group to do that . i don't want to speak for the others, but we spent a fair amount of time, it little more than others in the past talking about things. talking them out. sometimes brings you a little closer together. it has been subject to some
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off andm to put things let's not do with this. some people think that is bad. it has something to do with judicial lofty. be restraineduld and only decide issues when it is necessary to do for -- so. how it relates to others? i'm not quite sure. invictus of our history, john marshall, the idea was not clear that you could dissent. everything was unanimous and i think that had a lot to do with john marshall. nature.workers let me get to know washington -- when we get to washington, we will all live in the same boarding house.
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functioned as a group. because marshall and post his will on others, there was a lot of exchange. other views were considered and often became part of the unanimous opinions. question,spect to the they had very different management styles, past justices. small conferences went on at great length as the justices cases amongst themselves. with chief justice rehnquist, werediscussions shorter and the votes would come out and writing. do you have thoughts about these very different management styles with chief justice burger and chief justice rehnquist and to
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have a preference do you have a preference of -- do you have a ironing outof hirin these orally or leave it to writing? burger was too long and chief justice rehnquist was too short and maybe this is a goldilocks moment. [laughter] i think it is important, it is probably true we discussed things a little more than they did under chief justice rehnquist that you think that moves things along. you do get to a point where, it will come out in the writing. there are none of us, eight now of course. when you get to the small details, it is hard to have nine people talking about what does this curly cue and the regulation mean.
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you have to get it on paper so everyone can focus on it a little more. one final question. i think we have one out there. the microphone is right behind you. >> you mentioned that the court deals with technology now. with scientific and technological issues or whether it is biology or climate science, what kind of science background should the justices have and who do they go to? >> very good question. barry backgrounds is the short answer. -- varied backgrounds is the short answer. justice thomas is the most technologically sophisticated.
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he advises us on what to get. who knows what those machines are doing. necessarily by age. some of the more junior ones might not have as much experience as some of the more senior ones. i know justice scalia was experiencing with some of the in dealing with research and drafting and all that. who do we go to? that is a good question. i think there is some controversy around their. at. record, itart of a depends on the case whether it be in the record as opposed to your own independent research. a law clerk is so much more adept at the technologically -- technology than we are.
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it is a great challenge and an interesting question. i think we need to be very careful about conducting our own research, that is what we are supposed to do. but to the extent of technology as a factual issue in a case, a painted -- patent examination. if we step beyond the record, i think we have to be careful to make sure probably through questions of the oral argument. if we find something, we wonder if we can ask the lawyers. give them an opportunity to set us right or at least let us appreciate their two sides to the story. it, we tendtioned to think, like sports. he said who had the 50 best baseball players and they all play in the last 30 years, that is what we know. the railroad was a big technological development and totally overturned people's concept in many areas.
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property law, i remarked president reagan is to talk about with his generation they went from getting around on horses to going to the moon. that is a big technological change right there. it can be subject to debate if that was more significant or whether what is going on in our area. maybe it's one of the things where we tend to see things from our own perspective. alice's --number of amicus briefs. >> for the lawyers out there, they are great with a focus on something in particular. amendmentbout fourth , ifes and how they apply you didn't amicus brief, and says that we're going to do is explain to you how these work. sameposed to i look at you legal analysis you get in a party brief.
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this brief is devoted to the history of this particular legal provision, those are helpful. ones that army-- breifs are less helpful. >> lets thank chief justice for being here. [applause] thank you, that was so helpful. >> i really enjoyed it. [applause]
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>> a story told me by my waiter, i know you are dead and back end of want to play about a spirit i had. i was driving from west virginia tors for junior the other day and said it was a sunny day come skies were blue and the sun was out. he was going 8070 mile-per-hour zone.
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i left west virginia, came into virginia and said dog on it, as soon as a guide to virginia, there was a trip on the side of the road. it was too late to slow down. i would buy the trooper and pulled behind me and started following the. i was going 80 so i kept going 80 and sure enough, the guy turned the blue lights on and pulled him over. he said the trooper walked up to him and said, could i see her driver's license? waiter showed it. the trooper said he was in a good mood. if you have a good reason for why you are speaking, i will probably let you go. waiter said, i looked at him as a, to tell you the truth, off with a wife ran state trooper and i was scared you are him bringing him back. [applause] [laughter]
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a group of supreme court reporters give us an inside look on some of the major cases decided this term. they will also talk about the death of antonin scalia a. posted by the d.c. bar event live at 12:30 p.m. eastern.
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posting a briefing on the title justice reform. we will hear from several experts and members of right on crime. that is that 1:30 p.m. eastern. c-span3. c-span's washington journal club every day with news and policy issues that impact you. coming up on tuesday morning, a congressional discretion -- discussion. they will talk about what is left on the legislative agenda. also former white house senior middle east advisor will examine u.s. efforts in the fight against isis. be sure to watch c-span's washington journal beginning like that; eastern on tuesday when. eastern on tuesday
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morning. the hard-fought 2016 primary season is over. historic inventions to follow. -- conventions to follow. at the delegates consider the nomination of the first woman ever to head a major political party and the first non-politician in several decades. watch live on c-span. seat to a front row every minute of both conventions on c-span. getting on monday, july 18. y,n monda ng july 18. held a discussion on first ladies.


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